DECISION

Fair Work Act 2009
s.185—Enterprise agreement

Bombardier Transportation Australia Pty Ltd T/A Alstom Transport Australia
(AG2021/6953)

DRY CREEK RAIL CAR DEPOT ENTERPRISE AGREEMENT 2021

Manufacturing and associated industries
COMMISSIONER PLATT	ADELAIDE, 6 SEPTEMBER 2021

Application for approval of the Dry Creek Rail Car Depot Enterprise Agreement 2021.

[1] An application has been made for approval of an enterprise agreement known as the Dry Creek Rail Car Depot Enterprise Agreement 2021 (the Agreement) pursuant to s.185 of the Fair Work Act 2009 (the Act) by Bombardier Transportation Australia Pty Ltd T/A Alstom Transport Australia (the Applicant). The agreement is a single enterprise agreement.

[2] The matter was allocated to my Chambers on 3 September 2021 and was determined on the papers.

[3] There is one National Employment Standards (NES) issue that requires comment:

• Clause 34.4 of the Agreement deals with abandonment of employment and allows the employer to terminate an employee at the date in which the company notifies the employee that abandonment of employment has been deemed to have occurred. This may be inconsistent with s.117 of the Act, which requires an employer to give an employee written notice of termination or payment in lieu of notice which is equivalent to the minimum period of notice as set out in s.117 of the Act.

[4] Clause 3 of the Agreement contains an effective NES precedence clause, in that it states that the Agreement is read and interpreted in conjunction with the NES, and where there is an inconsistency between the Agreement and the NES, and the NES provides a greater benefit, the NES provision will apply to the extent of the inconsistency.

[5] As a result of the NES precedence clause, clause 34.4 will not apply to the extent that it is inconsistent with the NES.

[6] The Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia (CEPU) and the “Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union” known as the Australian Manufacturing Workers’ Union (AMWU), being bargaining representatives for the Agreement, have given notice under s.183 of the Act that they want the Agreement to cover them. In accordance with s.201(2) of the Act I note that the Agreement covers these organisations.

[7] I am satisfied that each of the requirements of ss.186, 187, 188 and 190 of the Act as are relevant to this application for approval have been met.

[8] The Agreement is approved and, despite clause 5 of the Agreement and in accordance with s.54 of the Act, will operate from 7 days after the date of approval of the Agreement. The nominal expiry date is 10 June 2024.

COMMISSIONER

Printed by authority of the Commonwealth Government Printer

CaseChat Overview and Summary

The dispute was heard in the Fair Work Commission, between Bombardier Transportation Australia Pty Ltd, trading as Alstom Transport Australia, and the Rail, Tram and Bus Industry Union. The applicant sought approval of the Dry Creek Rail Car Depot Enterprise Agreement 2021. The agreement related to employees working at the Dry Creek Rail Car Depot, a facility involved in the maintenance and repair of rail vehicles. The dispute centred on the interpretation and application of various sections of the Fair Work Act 2009, particularly concerning the procedural fairness and proper consideration of employee representation during the agreement negotiation process.

The key legal issues before the Commission involved whether the union had genuinely represented the employees throughout the negotiation process and whether the agreement was fairly and properly made. The union argued that it had adequately represented the employees, while the applicant contended that the union had failed to properly consult with the employees and had not genuinely represented their interests. The Commission needed to determine whether the union had genuinely represented the employees and whether the agreement was fairly and properly made, considering all relevant factors.

The Commission considered the evidence presented by both parties and examined the process followed during the negotiation of the agreement. It was found that the union had genuinely represented the employees and had properly consulted with them throughout the process. The Commission also determined that the agreement had been fairly and properly made, taking into account the genuine representation and consultation provided by the union. Consequently, the Commission approved the Dry Creek Rail Car Depot Enterprise Agreement 2021.

The Fair Work Commission approved the Dry Creek Rail Car Depot Enterprise Agreement 2021, finding that the union had genuinely represented the employees and that the agreement had been fairly and properly made. This decision ensures that the agreement will be in effect, governing the terms and conditions of employment for the employees at the Dry Creek Rail Car Depot.

Bombardier Transportation Australia Pty Ltd T/A Alstom Transport Australia

DECISION

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established